December 28 Tip of the Week

While many employers might already know that it is legal to require that employees provide evidence of a negative COVID-19 test to remain at work or return to work post-illness, what was less clear, at least before the EEOC weighed in, was whether an employer can require an employee take and pass a COVID-19 antibody test.  According to the CDC, antibody testing checks the body for antibodies, which can show if an individual had a past infection with the virus that causes COVID-19.  This would presumably indicate that an individual would have some level of protection against reinfection, although that is unproven at this time.  Employers thinking this could be a great tool to protect employees in the workplace, though, will have to shelve that idea.  The EEOC has stated that antibody testing is considered a medical examination and antibody testing does not meet the ADA’s standard of being “job related and consistent with business necessity.”  For now, it is best for employers to implement other control measures such as excluding workers who are experiencing symptoms, believe they have been exposed to someone who tested positive, or have tested positive themselves.  For legal assistance on an array of COVID-19 related topics, consult with our team of licensed attorneys on-demand, through our online Ask an Attorney portal.